Long Beach awaits California Supreme court rulings on pot shop bans

January 14, 2013

Two medical marijuana cases going before the state Supreme Court could determine whether dispensary bans by dozens of California cities are legal.

The City of Riverside v. Inland Empire Patient's Health and Wellness Center is scheduled to begin Feb. 5 at the University of San Francisco School of Law over the city's legal authority to ban the dispensaries, which was upheld by an appeals court last year.

In another upcoming case, City of Upland v. G3 Holistic Inc., G3 lawyers are expected to argue that cities can't ban the dispensaries because they're allowed under Proposition 215, the Compassionate Use Act, which legally allows doctors to prescribe marijuana to patients.

Some cities contend they have the power to close the dispensaries based solely on zoning laws.

Medical marijuana advocates have said that more than 170 bans were in place across California at one point, including Long Beach. The city and county of Los Angeles have also both attempted to ban dispensaries but were forced to back down.

City officials also lean on federal law that says marijuana - medical or otherwise - is illegal.

"We're watching the Riverside case very closely yes," said T. Peter Pierce, an attorney for Los Angeles-based Richards, Watson & Gershon, which is representing Upland in its Supreme Court case.

"Once the Supreme Court decides, they would apply that decision in the G3 case as well as to all medical marijuana decisions."

If the Supreme Court rules in favor of Riverside, or local governments, it would affirm an appellate court ruling in the G3 case.

Attorneys representing G3 Holistic filed an appeal in December 2011 to the Supreme Court after the 4th District Court of Appeal in Riverside sided with Upland's ban on dispensaries on Nov. 9, 2011, based on its zoning code language.

A similar decision was reached in the Riverside case that same day.

J. David Nick, an attorney for Inland Empire Patient's Health and Wellness Center, said he thinks a decision in the Riverside case would allow the Supreme Court to "remand things back to the appellate," which would allow appellate courts to make decisions based on the Supreme Court case.

Navigating state and federal marijuana laws has created a quagmire for local governments as they attempt to regulate or ban the drug, which is legal in California for medical purposes but illegal under federal law.

Last July, an appeals court struck down Los Angeles County's ban on all dispensaries in unincorporated areas.

Justices said that the state's medical marijuana laws authorize cooperatives and collectives to grow, store and distribute cannabis, contrary to the county's ban passed in 2010.

"The phrase `regulate the location, operation, or establishment' does not mean ban, prohibit, forbid, or prevent all medical marijuana collectives and cooperatives from operating within the entire jurisdiction `solely on the basis' that they engage in medical marijuana activities," Judge Robert Mallano wrote.

If full-on bans are ruled illegal, that could leave cities in a precarious position.

In 2011, a federal appeal court ruled that Long Beach couldn't regulate medical marijuana dispensaries, as many other cities have attempted to do. Justices said the rules violated federal law.

Long Beach then appealed to the state Supreme Court for clarification on its powers to regulate medical marijuana - while later banning collectives of more than three people.

The high court threw out the appeal after the city banned medical marijuana outright.

Long Beach City Attorney Robert Shannon said the Supreme Court's decision on the Upland and Riverside cases will apply to the city, assuming justices do not rule on a narrow front affecting only those cities.

Shannon called that scenario "unlikely."

"I think they're poised to give guidance to the cities, and frankly to the medical marijuana collectives," he said.

For the city of Los Angeles, the Supreme Court hearing on the Riverside case is not expected to have any immediate impact.

"These cases concern whether local government can ban dispensaries," said Jane Usher, a special assistant city attorney.

The Los Angeles City Council had voted to ban dispensaries but reversed its decision after medical marijuana advocates collected enough signatures to put a referendum on the ballot to overturn the prohibition.

But, Usher said, the city is closely watching to see if the court will spell out how cities can govern pot shops.

"We anticipate that the Supreme Court may use these cases to set forth its views regarding the scope of the regulatory authority of local government," Usher said.

"If the court takes that opportunity, we will recommend the city follow the court's lead in any new medical marijuana regulations."

Usher said the direct cases involving the city's proposals on limiting the clinics have been pushed back to the point that the city attorney has not even been told to prepare legal arguments.

Kris Hermes of Americans for Safe Access said the Riverside case will have an impact on the ability of cities to address safe and legal access to medical marijuana.

"With dozens of local regulatory ordinances through the state and more than 170 municipal bans, there is a patchwork of access that patients have to navigate," Hermes said.

Hermes said advocates for medical marijuana hope Los Angeles will change its regulations and avoid the need for a further legal battle.